Will the ICC have a positive legacy in Kenya?

By FELIX OLICK
folick@standardmedia.co.ke

The numerous obstacles encountered in prosecuting President Uhuru Kenyatta and his Deputy William Ruto at the International Criminal Court (ICC) have left observers divided on the legacy it will leave
behind in the country.
The two leaders are charged with orchestrating the bloodshed that followed a disputed presidential election in late 2007 and left more than 1,100 Kenyans dead and around 650,000 others displaced.

A third defendant, former broadcaster journalist Joshua Arap Sang, is on trial alongside Ruto. Kenyatta is charged in a separate case.

The court confirmed charges against all three men in January 2012 after prosecutors began investigating the post-election violence in March 2010. But both cases have been undermined by the withdrawal of
several prosecution witnesses and the Kenyan government’s failure to hand evidence to the court.

Prosecutor Fatou Bensouda admitted last December that she lacked sufficient evidence to bring the Kenyatta case to trial. Late last month, judges delayed the start of the case against Kenyatta until
October after a key witness changed his testimony, forcing prosecutors to look for more evidence.

In their March 31 decision, judges ordered the Kenyan authorities to cooperate with prosecutors and provide the information which they had asked for.

In the Ruto and Sang case, which began last September, judges asked the Kenyan authorities to summon eight witnesses who, having provided initial statements, subsequently either declined to testify or stopped communicating with the court.
Bensouda has repeatedly alleged unprecedented levels of witness intimidation and interference in the two cases. Last August, judges issued an arrest warrant against former journalist Walter Barasa for
bribing and attempting to bribe witnesses in the Ruto and Sang case.

Some justice experts believe that despite the many challenges of bringing the cases against Kenya’s leaders, the ICC’s intervention will have a lasting impact in the country. But others argue that the
cases have exposed serious flaws in the way the court operates which dwarf any positive legacy.

The Office of the Prosecutor (OTP), in particular, has been widely criticised for the way it gathered evidence in Kenya.

In their March decision delaying the Kenyatta case, judges expressed “serious concerns” with how prosecutors had gone about their investigations.

“The prosecution was, from an early stage of the proceedings, on notice regarding potentially serious challenges to the credibility of certain of its key witnesses,” the judges said in a written decision.
“This should have been sufficient to prompt a thorough review of the evidence in the case and, in particular, the consistency and reliability of witness statements.”

Kibe Mungai is a lawyer at the High Court in Nairobi who currently represents Barasa. He argues that the prosecution is to blame for the withdrawal of witnesses.

“Serious crimes against humanity may have been committed in Kenya, but there has been insufficient professionalism on the part of the OTP,” Mungai told the Standard.

Benji Ndolo, director of the Organisation for National Empowerment, said Kenyans would view the ICC as a flawed institution incapable of gathering evidence against senior leaders if it failed to convict the
defendants.

“Kenyans would look at the ICC as lacklustre and a weak institution that is [open to manipulation],” he said. “Those who risked their lives, including NGOs and witnesses, would be thoroughly
disappointed.”

But other legal experts argue that regardless of the outcome of proceedings against Ruto/Sang and Kenyatta, the ICC has already created a strong deterrent against future crimes in Kenya.

“The ICC process will go a long way in showing Kenyans that no one is above the law and even the mightiest can be tried,” Donald Rabala, a senior lawyer at the High Court in Nairobi, said. “Before [2010] such things were not possible in Kenya.”

Last year’s presidential and local elections went off in a largely peaceful manner, and were hailed as proof of the ICC’s ability to deter people from engaging in mass crimes.

“One of the most important contributions an institution like the ICC can make is to act as a credible deterrent measure against atrocities,” Fergal Gaynor, the legal representative for victims in the Kenyatta case, said. “I am personally convinced that the threat of ICC prosecutions may well have been a significant factor [in the peaceful polls].”

Others argue that the central issue is whether the court has taken every possible step to deliver justice.
Mokaya Orina, a lecturer at Moi University, says that the actual legacy of the Court will be determined by a fair determination of the
cases.

“This is why the Judges are trying hard to ensure that the cases are not dismissed on mere technicality,” he noted.

The law don was referring to two recent rulings where the bench ordered the Kenyan government to disclose Kenyatta’s financial records and to compel some eight witnesses to testify against Ruto and Sang.

Others highlight the example that the ICC has set for reforms to Kenya’s domestic justice system.

City lawyer Vincent Lempa says The Hague court has demonstrated that criminal prosecutions must be carried out solely on the basis of evidence, and that the wealthy elite and senior public figures cannot
be shielded.

“The Kenyan judiciary has a history of being soft and friendly to the rich and the powerful,” he told the Standard on Sunday. “The Hague cases are a challenge to the Kenyan bench.”

As a case in point, Lempa praised the establishment of the International Crimes Division (ICD) of Kenya’s High Court. This unit is currently being set up to deal with crimes against humanity, war
crimes and genocide – matters that would previously have been tried at
the ICC.

According to Kenya’s Judicial Services Commission, the ICD will have powers to try mid- and lower-level perpetrators of the 2007-08 unrest under the International Crimes Act, a domestic version of the ICC’s
Rome Statute that was written into national law in 2009.

In Lempa’s view, “Without the ICC, the ICD would not have been created.”

Other supporters of the ICC say the challenges it has faced in Kenya should not detract from its achievements.

Rabala points to the way the Kenyan authorities have attempted to protect Kenyatta and Ruto from the course of justice.

Since 2010, the government has lodged a succession of challenges with ICC itself and with the United Nations Security Council, seeking either to delay the cases or to have them terminated altogether. Last
September, the lower and upper houses of the Kenyan parliament voted
to pull out of the ICC completely.

“The integrity of the court will remain intact,” Rabala concluded. “When the entire story is finally written it will be said that Kenyans, in effect, shielded their leaders.”